Wright
v.
Berryhill

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISIONJul 27, 2018
4:17-CV-96-FL (E.D.N.C. Jul. 27, 2018)

4:17-CV-96-FL

07-27-2018

MAJOR WRIGHT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


MEMORANDUM AND RECOMMENDATION

In this action, plaintiff Major Wright ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") on the grounds that he is not disabled. The case is before the court, in part, on plaintiff's combined motion for judgment on the pleadings and consent motion to amend the transcript. D.E. 19. The consent motion seeks inclusion in the record of over 500 pages of medical records from United States Department of Veterans Affairs ("VA") Regional Offices (each referred to herein as a "VARO") that plaintiff submitted to the Appeals Council, but which the Appeals Council did not make part of the record. Plaintiff filed copies of these additional medical records ("Supplemental Records") with his combined motion. See Supp. Records (D.E. 18, 18-1, 18-2). This case is also before the court on the Commissioner's motion for judgment on the pleadings. D.E. 20.

Plaintiff originally filed his motion for judgment on the pleadings at docket entry 16. D.E. 16. However, a notice of deficiency was entered on 19 December 2017 directing counsel to refile the document selecting all motions that apply to the filing. Public unnumbered D.E. dated 16 Dec. 2017. Plaintiff subsequently filed the document as a motion for judgment on the pleadings and a motion to amend the administrative record. D.E. 19.

Plaintiff claims that the records he filed at these docket entries are copies of the same records he submitted to the Appeals Council. The Commissioner does not challenge this assertion. Moreover, the source of the documents in each submission is the same, various VAROs (see Tr. 2), and the length of both submissions is the same, 646 pages (see Tr. 2). The court recognizes that there is a slight discrepancy in the date of the earliest record as reported by the Appeals Council, 30 June 2012, and the date of the earliest record in the submission to this court, 28 June 2012 (see Supp. Records (D.E. 18) 46), but finds that this discrepancy does not offset the other indicia that the two submissions are the same. The court therefore deems the Supplemental Records as filed by plaintiff in this court to be copies of the records he submitted to the Appeals Council. As can be seen, plaintiff filed the Supplemental Records in this court in three groups. While the reason for such grouping is not clear, it is immaterial to the court's analysis.

Both parties filed memoranda in support of their respective motions for judgment on the pleadings. D.E. 17, 21. In his memorandum, plaintiff did not present argument relating to the consent motion to amend and did not file a separate memorandum on the motion to amend. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 16 Feb. 2018 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motions be allowed, the Commissioner's motion be denied, and this case be remanded pursuant to sentence six of 42 U.S.C. § 405(g) ("sentence six").

BACKGROUND

I. CASE HISTORY

Plaintiff filed an application for DIB on 1 May 2015, alleging a disability onset date of 29 January 2012. Transcript of Proceedings ("Tr.") 15. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 15. On 21 October 2016, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by counsel, and a vocational expert testified. Tr. 15, 39-82. At the hearing, plaintiff stated that he had requested records from a VARO, among other healthcare providers, but still had not received them. Tr. 45. The ALJ informed him that he would hold the record open until 4 November 2016 at 5:00 p.m. and, if additional time was needed, plaintiff would need to submit a written request for additional time. Tr. 45.

On 15 February 2017, the ALJ issued a decision denying plaintiff's application. Tr. 15-34. In his decision, the ALJ addressed an additional request for extension of time to submit records by plaintiff as follows:

On November 4, 2016, Ms. Hukill [i.e., plaintiff's attorney at the hearing] reported that her office requested records [from] Peachtree Immediate Care and that a request for records from Central Texas Veterans Hospital was mailed on October 26th. Ms. Hukill also indicated that she had additionally requested records from Laurel Ridge Treatment Center and VARO. Ms. Hukill requested an additional two weeks to submit the records (Ex. B18E). The undersigned subsequently received records from Central Texas VA [M]edical Center and Peachtree Immediate Care, exhibits B9F and B10F, but no other records. As a substantial amount of time has passed, the undersigned finds that the record is complete. The undersigned has entered exhibits B9F and B10F into the record and has considered them in making this decision.

Tr. 15; see also Tr. 337 (4 Nov. 2016 letter requesting a two-week extension).

Plaintiff timely requested review by the Appeals Council. Tr. 204. On 16 May 2017, the Appeals Council denied the request for review. Tr. 1. As noted, plaintiff submitted the Supplemental Records to the Appeals Council. It rejected them, stating: "You submitted medical records from VARO dated June 30, 2012 through July 28, 2016 (646 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence." Tr. 2.

The Appeals Council's statement that it did not consider the Supplemental Records is plainly inconsistent with its statement that they do not show a reasonable probability of changing the outcome of the case. This ambiguity, though, is not material to resolution of this appeal.

At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 17 July 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See Compl. (D.E. 1).

The versions of the regulations and Social Security Rulings cited by the undersigned herein are those applicable to plaintiff's claim and the ALJ's decision, although several were subsequently modified or rescinded.

II. STANDARDS FOR DISABILITY

The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).

The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the

[R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step. If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.

Mascio v
. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).

See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.

See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.

III. ALJ'S FINDINGS

Plaintiff was 30 years old on the alleged disability onset date and 35 years old on the date of the hearing. Tr. 33 ¶ 7; see also Tr. 48. The ALJ found that he has at least a high school education (Tr. 33 ¶ 8) and past relevant work as a combat rifle crew member and an automobile mechanic (Tr. 33 ¶ 6).

Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 29 January 2012, the alleged disability onset date. Tr. 17 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: mild dextroscoliosis of the midthoracic spine; diabetes mellitus; hypertension; obstructive sleep apnea with continuous passage airway pressure ("CPAP"); asthma; post-traumatic stress disorder ("PTSD") with anxiety and depression; status post mild traumatic brain injury; and obesity. Tr. 18 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 19 ¶ 4.

The ALJ next determined that plaintiff had the RFC to perform a reduced range of medium work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform medium work as defined in 20 CFR 404.1567(c) except the claimant can frequently climb ramps, stairs, ladders, ropes, and scaffolds; frequently stoop, kneel, crouch, and crawl. The claimant can have frequent exposure to work at unprotected heights, moving mechanical parts, and operating a motor vehicle. He can have occasional exposure in dust, odors, fumes and pulmonary irritants but frequent exposure to vibration, and can be exposed to moderate noise levels. He is limited to performing simple, routine tasks. He may have frequent interaction with coworkers and members of the general public. He is limited to only occasional changes to the work setting and the manner or method of performing the assigned work. His time off task may be accommodated by normal breaks.

Tr. 22 ¶ 5.

Medium work involves lifting items weighing up to 50 pounds at a time with frequent lifting or carrying of items weighing up to 25 pounds. See 20 C.F.R. § 404.1567(c); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "M-Medium Work," 1991 WL 688702. "Medium work" and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. § 404.1567.

Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform his past relevant work. Tr. 33 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of counter supply worker, dining room attendant, and polisher. Tr. 33-34 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 29 January 2012, through the date of the decision, 15 February 2017. Tr. 34 ¶ 11.

IV. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.

The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.

Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

DISCUSSION

I. OVERVIEW OF PLAINTIFF'S CONTENTIONS

Plaintiff contends that the ALJ's decision should be reversed and the case remanded for a new hearing, in part, on the grounds that the ALJ erred in failing to determine whether plaintiff's assistive device was medically necessary and assessing plaintiff's VA disability ratings of record. Plaintiff also contends that remand is required for proper administrative consideration of portions of the Supplemental Records which, again, the Appeals Council did not incorporate into the administrative record, but a copy of which plaintiff filed in this court. Because the issue of administrative consideration of the Supplemental Records is dispositive of this appeal, the court's decision will focus on it.

II. APPLICABLE LEGAL PRINCIPLES

Sentence six addresses remand when evidence is submitted for the first time to the court, including where the evidence was previously submitted to the Appeals Council but it did not make the evidence part of the record. See, e.g., 42 U.S.C. § 405(g), sent. 6; Nix v. Colvin, Civ. Act. No. 6:14-cv-00071-JMC, 2015 WL 799528, at *9-10 (D.S.C. 20 Jan. 2015) (noting that remand for review of evidence plaintiff submitted to Appeals Council that it returned to plaintiff and did not make part of the record would be pursuant to sentence six), rep. & recomm. adopted, 2015 WL 799528, at *1 (25 Feb. 2015).

Sentence six provides for remand "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Fourth Circuit has held that there are four requirements for a sentence six remand:

First, the claimant must demonstrate that the new evidence is relevant to the determination of disability at the time the claimant first applied for benefits and is not merely cumulative of evidence already on the record. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983)). Second, the claimant must establish that the evidence is material, in that the Commissioner's decision "'might reasonably have been different' had the new evidence been before her." Id. (quoting King v. Califano, 599 F.2d 597, 599 (4th Cir.1979)). Third, the claimant must show that good cause exists for her failure to present the evidence earlier. Id. And fourth, the claimant must present to the reviewing court "'at least a general showing of the nature' of the new evidence." Id. (quoting King, 599 F.2d at 599). In assessing whether the claimant has made these requisite showings, however, "[t]his Court does not find facts or try the case de novo." King, 599 F.2d at 599 (citing Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971)).

Finney v
. Colvin, 637 F. App'x 711, 715-16 (4th Cir. 2016). As this statement of the four requirements indicates, the burden of showing that they are met rests with the claimant. See Fagg v. Chater, No. 95-2097, 1997 WL 39146, at *2 (4th Cir. 3 Feb. 1997); Keith v. Astrue, No. 4:11CV0037, 2012 WL 2425658, at *2 (W.D. Va. 22 Jun. 2012) ("The burden of demonstrating that all of the Sentence Six requirements have been met rests with the plaintiff."), rep. & recomm. adopted, 2012 WL 4458649 (9 Aug. 2012).

The dissent in the case being quoted explained the basis for this requirement, which is not stated expressly in sentence six:

Although Sentence six does not explicitly require that new evidence must relate to the period previously considered by the ALJ, such a requirement is implicit in the materiality prong. See Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991); see also Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (explaining that, to warrant a Sentence six remand, the new evidence must "relate to the time period for which benefits were denied," and not be merely probative "of a later-acquired disability or of the subsequent deterioration of [a] previously non-disabling condition").


III. SUPPLEMENTAL RECORDS PLAINTIFF CONTENDS WARRANT REMAND

Plaintiff contends that remand is required for proper administrative consideration of the following six sets of records included in the Supplemental Records: five disability rating decisions dated 28 June 2012 (Supp. Records (D.E. 18) 46-54), 22 June 2013 (id. at 33-41), 1 April 2014 (id. at 18-20), 3 June 2015 (id. at 11-14), and 18 July 2016 (id. at 4-7), and a questionnaire filled out by examining psychologist Jonathan A. Norwood, Psy.D., entitled Review Post-Traumatic Stress Disorder (PTSD)—DSM V: Disability Benefits Questionnaire and dated 14 July 2016. Id. at 57-63. Each of these sets of records is summarized in turn below.

Citations to the Supplemental Records are to the page numbers assigned by the CM/ECF electronic court filing system.

A. 28 June 2012 VA Rating Decision

In the rating decision dated 28 June 2012, the VA "assigned a 50 percent evaluation" for plaintiff's PTSD with major depressive disorder and alcohol dependence in remission based on the following:

• Unprovoked irritability with periods of violence
• Occupational and social impairment with reduced reliability and productivity
• Chronic sleep impairment
• Depressed mood
• Mild memory loss
• Panic attacks (less than weekly)

Supp. Records (D.E. 18) 47 ¶ 1. The VA indicated plaintiff's Global Assessment of Functioning ("GAF") score was 55, indicating "moderate symptoms; or any moderate difficulty in social, occupational, or school functioning." Id.

The VA also "assigned a 20 percent evaluation for [plaintiff's] diabetes" based on his requirement for an oral hypoglycemic agent and a restricted diet. Id. at 48 ¶ 2. Plaintiff received a 10 percent evaluation, without explanation, based on recurrent tinnitus, which "is the highest evaluation allowed under law for this condition." Id. at 48 ¶ 3. The VA also "assigned a 10 percent disability rating for [plaintiff's] thoracolumbar spine" based on the following:

• Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees
• Combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees

Id
. at 48 ¶ 4. Regarding plaintiff's cervical spine, the VA "assigned a 20 percent disability rating" based on the fact that "[f]orward flexion of the cervical spine [was] greater than 15 degrees but not greater than 30 degrees." Id. at 49 ¶ 5. The VA "assigned a 10 percent evaluation for [plaintiff's] knee condition" stating that the evaluation was based on "[p]ainful motion of the knee (38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since [plaintiff] demonstrate[d] painful motion of the knee, the minimum compensable evaluation of 10 percent [was] assigned.)" Id. at 49 ¶ 6.

Plaintiff also received "a 50 percent evaluation for [his] sleep apnea syndrome" because he "[r]equire[d] use of [a] breathing assistance device such as [a] continuous airway pressure (CPAP) machine." Id. at 50 ¶ 7. The VA "assigned a noncompensable evaluation based on one or more linear scars." Id. at 50 ¶ 8. Plaintiff received "a 10 percent evaluation for [his] hypertension" based on the following:

• Diastolic pressure predominantly 100 or more;
• A history of diastolic pressure predominantly 100 or more and there is a requirement for continuous medication for control.

Id
. at 51 ¶ 9.

Regarding plaintiff's diagnosis of traumatic brain injury ("TBI"), the VA stated that mental manifestations of plaintiff's TBI, specifically his neurobehavioral effects, could not be delineated from his PTSD and were thus included in his PTSD evaluation. Id. at 51 ¶ 10. The VA assigned plaintiff's TBI evaluation 10 percent for his subjective symptoms because it was indicated that "an examiner found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships." Id. at 53 ¶ 10. Regarding plaintiff's bilateral hearing loss, the VA stated, "Service connection for bilateral hearing loss is denied because there is no evidence that [plaintiff] currently [has] a hearing loss for VA purposes. Id. at 53 ¶ 11.

Regarding plaintiff's neurobehavioral effects, the VA stated that "an examiner found evidence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them." Supp. Records (D.E. 18) 53 ¶ 10.

B. 22 June 2013 VA Rating Decision

On 22 June 2013, the VA produced another rating decision. Id. at 33-41. The ratings were unchanged from those assigned in the 28 June 2012 rating decision, except that the VA addressed plaintiff's right ankle strain assigning it "a noncompensable evaluation," stating that it was "[a] diagnosed disability with no compensable symptoms." Id. at 39 ¶ 10.

C. 1 April 2014 VA Rating Decision

The 1 April 2014 VA rating decision decreased plaintiff's disability rating of 50 percent to 30 percent effective that same day. Id. at 18-19. However, the VA noted that the decrease would not have an effect on his overall compensation and that he would "remain at 90 percent for [his] overall combined evaluation." Id. at 19. The VA based plaintiff's rating on the following:

• Disturbances of motivation and mood
• Chronic sleep impairment
• Anxiety
• Depressed mood
• Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal)

Id
. at 19. The VA further provided that an "evaluation of 50 percent is not warranted unless the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms" as follows:
• flattened affect
• circumstantial, circumlocutory, or stereotyped speech
• panic attacks more than once a week
• difficulty in understanding complex commands
• impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks)
• impaired judgment
• impaired abstract thinking
• disturbances of motivation and mood
• difficulty in establishing and maintaining effective work and social relationships.

Id
. at 19.

D. 3 June 2015 VA Rating Decision

The VA rating decision dated 3 June 2015 continued plaintiff's PTSD 30 percent evaluation and his lumbar strain 10 percent evaluation. Id. at 11. The VA noted in both circumstances that plaintiff failed to report for his examination and "did not show good cause for [his] failure to do so." Id. at 12-13 ¶¶ 1, 2. Thus, "[m]edical evidence that could have been useful to support [his] claim was not available to" the VA. Id. The decision also denied plaintiff's "[e]ntitlement to individual unemployability." Id. at 11. The VA elaborated as follows: "Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. [Plaintiff] is considered capable of gainful employment." Id. at 13 ¶ 3.

E. 18 July 2016 VA Rating Decision

The rating decision dated 18 July 2016 changed plaintiff's disability rating pertaining to his PTSD as follows: "Evaluation of [PTSD], which is currently 30 percent disabling, is increased to 70 percent effective March 2, 2015. An evaluation of 100 percent is assigned because of hospitalization over 21 days from March 11, 2016. An evaluation of 70 percent is assigned effective June 1, 2016." Id. at 4 ¶ 1. The VA also found that "[e]ntitlement to special monthly compensation based on housebound criteria being met is granted from March 11, 2016 to May 31, 2016." Id. at 4 ¶ 2.

The VA determined that, effective 2 March 2015, "[t]he overall evidentiary record shows that the severity of [plaintiff's PTSD] most closely approximates the criteria for a 70 percent disability evaluation" and based its conclusion on the following:

• Forgetting names
• Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood
• Depressed mood
• Disturbances of motivation and mood
• Mild memory loss
• Forgetting recent events
• Chronic sleep impairment
• Difficulty in adapting to stressful circumstances
• Difficulty in adapting to work
• Inability to establish and maintain effective relationships
• Difficulty in adapting to a worklike setting
• Anxiety
• Difficulty in establishing and maintaining effective work and social relationships
• Forgetting directions

Id
. at 5 ¶ 1.

Regarding the VA's assignment of a 100 percent rating, the VA stated:

An evaluation of 100 percent is assigned because of hospitalization over 21 days from March 11, 2016. Ratings for service-connected disabilities requiring hospital treatment or observation. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a [VA] or an approved hospital for a period in excess of 21 days or hospital observation at [VA] expense for a service-connected disability for a period in excess of 21 days. Review of VA treatment records from Central Texas VAMC shows that [plaintiff was] admitted in Domiciliary Residential Rehabilitation and Treatment Program (DRRTP) on March 11, 2016 due to [his] service-connected PTSD and was discharged on May 6, 2016.

Id
. at 6 ¶ 1.

The VA further determined that "[a]n evaluation of 70 percent [was] assigned from June 1, 2016, the first day of the month following the last day of the month of hospital discharge," and provided the following explanation:

An evaluation of 70 percent is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

Id
. at 6 ¶ 1.

F. Dr. Norwood's Questionnaire

The 14 July 2016 questionnaire which Dr. Norwood filled out consists of two sections, each of which is further divided into subparts with questions. Id. at 57-63. In the first section ("section 1"), Dr. Norwood noted that plaintiff had been diagnosed with PTSD and that it was also a current diagnosis for plaintiff. Id. at 57-58 § 1, ques. 1.a., 2.a. Dr. Norwood further noted that, while plaintiff did not have more than one mental disorder diagnosed, he had a diagnosed TBI. Id. at 58 § 1, ques. 3.a. and 3.c. However, it was possible to differentiate the symptoms attributed to each diagnosis and that "[a]ll symptoms are attributable to [plaintiff's] PTSD diagnosis." Id. at 58-59 § 1, ques. 3.d. In response to the question "Which of the following best summarizes [plaintiff's] level of occupational and social impairment with regards to all mental diagnoses?," Dr. Norwood checked the box stating, "Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." Id. at 59 § 1, ques. 4.a. Dr. Norwood again noted that although plaintiff had been diagnosed with TBI, all of his symptoms were attributable to his PTSD. Id. at 59 § 1, ques. 4.c.

The second section ("section 2") of the questionnaire addressed clinical findings. Id. at 59-62. Dr. Norwood indicated that he had reviewed plaintiff's claim file as well as the "VA e-folder (VBMS or Virtual VA)," but no information from collateral sources was reviewed. Id. at 59-60 § 2, ques. 1, 1.a., 1.b. In the box entitled "Relevant Social/Marital/Family history," Dr. Norwood stated:

[Plaintiff] was last evaluated for MH [i.e., mental health] purposes in January, 2014. Since that time, he indicated being socially isolated. He experiences significant anxiety and irritability in social situations, and does not often leave his home. He indicated having a couple cousins nearby that check in on him, and he keeps in touch with his parents. He denied any other social activity.

Id
. at 60 § 2, ques. 2.a. Regarding relevant occupational and educational history, Dr. Norwood stated, "[Plaintiff] reported attempting school, but dropped out due to anxiety, memory problems, and concentration problems. He denied any significant occupational history since his last evaluation." Id. at 60 § 2, ques. 2.b. In the box entitled "Relevant Mental Health history, to include prescribed medications and family mental health," Dr. Norwood stated the following:
[Plaintiff] reported 4 MH hospitalizations since his last evaluation due to suicidal thoughts. [Plaintiff] denied current thoughts, intent, or plan. He stated the last time he was hospitalized was 4 weeks ago, and he was inpatient for over 8 weeks.

[Plaintiff] stated that he is supposed to resume counseling, but needed a break. He is currently prescribed several medications, but could not remember the names.

Id
. at 60 § 2, ques. 2.c. Dr. Norwood also noted that plaintiff denied any significant legal or behavioral history as well as any substance abuse history since his last evaluation. Id. at 60 § 2, ques. 2.d., 2.c.

In section 2, question 3 addressed whether plaintiff met the diagnostic criteria for PTSD as set out in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.) ("DSM-5"). Under Criterion A, which requires "[e]xposure to actual or threatened a) death, b) serious injury, c) sexual violation, in one or more of the following ways," Dr. Norwood marked the boxes indicating plaintiff had "[d]irectly experience[d] the traumatic event(s)" and "[w]itness[ed], in person, the traumatic event(s) as they occurred to others." Id. at 60 § 2, ques. 3, Criterion A. Under Criterion B, which requires "[p]resence of (one or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred," Dr. Norwood marked the boxes indicating plaintiff had "[r]ecurring, involuntary, and intrusive distressing memories of the traumatic event(s)"; "[r]ecurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s)"; "[i]ntense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s)"; and "[m]arked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s)." Id. at 61 § 2, ques. 2, Criterion B.

Under Criterion C, which requires "[p]ersistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following," Dr. Norwood marked both available boxes which stated "[a]voidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s)"; and "[a]voidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s)." Id. at 61 § 2, ques. 3, Criterion C. Under Criterion D, which requires "[n]egative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following," Dr. Norwood marked that plaintiff had "[p]ersistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead to the individual to blame himself/herself or others"; "[p]ersistent negative emotional state (e.g., fear, horror, anger, guilt, or shame)"; "[m]arkedly diminished interest or participation in significant activities"; and "[f]eelings of detachment or estrangement from others." Id. at 61 § 2, ques. 3, Criterion D. Under Criterion E, which requires "[m]arked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following," Dr. Norwood marked that plaintiff experienced "[i]rritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects"; "[h]ypervigilence"; "[p]roblems with concentration"; and "[s]leep disturbance (e.g., difficulty falling asleep or restless sleep)." Id. at 61 § 2, ques. 3, Criterion E.

Under Criterion F, Dr. Norwood indicated that "[t]he duration of symptoms described above in Criterion B, C, and D are more than 1 month." Id. at 61 § 2, ques. 3, Criterion F. Under Criterion G, Dr. Norwood indicated that plaintiff's "PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." Id. at 61 § 2, ques. 3, Criterion G. Under Criterion H, Dr. Norwood indicated "[t]he disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition." Id. at 61 § 2, ques. 3, Criterion H.

Out of a list of possible symptoms, Dr. Norwood indicated that plaintiff suffered from the following: "[d]epressed mood"; "[a]nxiety"; "[c]hronic sleep impairment"; "[m]ild memory loss, such as forgetting names, directions, or recent events"; "[d]isturbances of motivation and mood"; "[d]ifficulty in establishing and maintaining effective work and social relationships"; "[d]ifficulty in adapting to stressful circumstances, including work or a work like setting"; and "[i]nability to establish and maintain effective relationships." Id. at 62 § 2, ques. 4. Regarding behavioral observations, Dr. Norwood provided the following: "[Plaintiff] presented to the evaluation casually dressed and well groomed. He was oriented x4. His mood appeared anxious, and his affect was congruent. [Plaintiff] was friendly and cooperative with the examiner." Id. at 62 § 2, ques. 4. Additionally, Dr. Norwood noted that plaintiff was capable of managing his financial affairs and that his former diagnosis of "Alcohol Use Disorder In Remission" had been "dropped due to sustained remission." Id. at 62 § 2, ques. 6, 7. The questionnaire appears to have been considered by the VA in its 18 July 2016 disability rating. See id. at 5 (stating "VA Examination, dated July 14, 2016" was evidence).

IV. ANALYSIS

It is apparent that plaintiff has satisfied the first, third, and fourth requirements for remand under sentence six with respect to the five VA rating decisions and Dr. Norwood's questionnaire for which he seeks remand. The first requirement is met because this evidence relates to the period of disability at issue, 29 January 2012 through 15 February 2017, and is not cumulative of evidence already of record. Specifically, all five VA disability ratings and the questionnaire by Dr. Norwood were all generated within this period. While the record contains evidence of percentages of disability that the VA assigned to plaintiff's impairments (Tr. 353, 979), it does not contain the disability rating decisions themselves. Nor does the record contain the questionnaire by Dr. Norwood.

As to the third requirement, plaintiff has shown good cause for "the failure to incorporate [the] evidence into the record in a prior proceeding." 42 U.S.C. § 405(g), sent. 6. As discussed, plaintiff submitted the five VA rating decisions and the questionnaire by Dr. Norwood to the Appeals Council but it refused to incorporate this evidence, or the other contents of the Supplemental Records, into the administrative records. Plaintiff satisfied the fourth requirement by submitted the actual evidence he wants considered, not simply making a showing of its nature.

Plaintiff also satisfies the sole remaining requirement, namely, the second requirement of materiality. Given the information in the VA disability decisions, the ALJ's decision might reasonably have been different had they been before him.

In Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012), the Fourth Circuit ruled that the Social Security Administration ("SSA") must accord substantial weight to a VA disability rating. Bird, 699 F.3d at 343. The court based its ruling on the similarities in the disability programs of the two agencies:

The assignment of at least some weight to a VA disability determination reflects the fact that both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability. McCartey [v. Massanari], 298 F.3d [1072] at 1076 [9th Cir. 2002]. "Both programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to present extensive medical documentation in support of their claims." Id.
. . . . Like the VA, the SSA was required to undertake a comprehensive evaluation of [the plaintiff's] medical condition. Because the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency. Thus, we hold that, in making a disability determination, the SSA must give substantial weight to a VA disability rating.

Id
. The court, though, also recognized that exceptions to attribution of substantial weight may be appropriate in particular cases: "[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability, and because the effective date of coverage for a claimant's disability under the two programs likely will vary, an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id. Bird would apply to the consideration of the VA rating decisions submitted in this case, and thus, if the rating decisions, particularly the rating decision dated 18 July 2016, were given significant weight, it could reasonably change the decision on disability by, among other means, altering the assessment of the statements made by plaintiff regarding his symptoms and limitations, which the ALJ discounted (see Tr. 23 ¶ 5), and plaintiff's RFC.

Consideration of Dr. Norwood's opinions also could reasonably change the decision on disability by various means. As noted, his opinions are relevant to the period of disability. Lending potential weight to Dr. Norwood's opinions is the fact that he examined plaintiff. See Supp. Records (D.E. 18) 57 (noting the "examining location"). The opinions of an examining source are generally entitled to greater weight than those of a nonexamining source. 20 C.F.R. § 404.1527(c)(1). Also lending potential weight is Dr. Norwood's specialization in psychology and the fact that he reviewed plaintiff's VA claim file. Id. § 404.1527(c)(5), (6).

Dr. Norwood's opinions tend specifically to support a finding that plaintiff's PTSD would significantly affect his ability to work, which the ALJ found to be a severe impairment but not disabling. As discussed previously, Dr. Norwood opined that "[t]he PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning" (Supp. Records (D.E. 18) 61 § 2, ques. 3, Criterion G); and plaintiff had difficulty "establishing and maintaining effective work and social relationships" and "adapting to stressful circumstances, including work or a work like setting" (id at 62 § 2, ques. 4). This evidence could therefore affect the assessment of plaintiff's RFC.

In addition, Dr. Norwood's opinions tend to corroborate plaintiff's allegations about the intensity, persistence, and limiting effects of his mental limitations. Again, the ALJ discounted these statements, finding them "not entirely consistent with the medical evidence and other evidence in the record." Tr. 23 ¶ 5. Dr. Norwood's opinions could therefore alter the assessment of plaintiff's statements regarding his limitations.

Dr. Norwood's opinions could also alter the assessment of other opinion evidence. For example, the ALJ gave "little weight" to the opinions of consultative examiner Atul Kantesaria, M.D. Tr. 29 ¶ 5. Dr. Kantesaria evaluated plaintiff on 11 November 2015 and opined as follows:

A 33-year-old single black male with a history of PTSD, alcohol and marijuana dependence history, possibly self medication for his underlying issues, five inpatient treatments. Not a danger to self or others, no psychotic, multiple health issues as stated before also playing a role here.
Capacity to understand, retain, and follow instructions PTSD we are looking at moderate effect, capacity to sustain attention to perform simple and repetitive tasks, moderate effect. Capacity to relate to others including fellow workers and supervisors, moderate effect and capacity to tolerate stress and pressures associated with day-to-day work and activities, moderate effect.

Tr. 867-68. Dr. Norwood's opinions appear to be consistent with Dr. Kantesaria's opinions regarding the nature of plaintiff's mental impairments. See Tr. 866-68. Consistency of medical opinions can be a basis for giving them more weight. See 20 C.F.R. § 404.1527(c)(4). Therefore, Dr. Norwood's opinions could result in more weight being given Dr. Kantesaria's opinions.

The ALJ also gave "partial weight" to the opinions of nonexamining state agency consultant Ken M. Wilson, Psy.D., who evaluated plaintiff at the initial level of review on 3 December 2015 (Tr. 107-08, 110-12), and "little weight" to the opinions of nonexamining state agency consultant Jennifer Fulmer, Ph.D., who evaluated plaintiff at the reconsideration level on 27 January 2016 (Tr. 122-23, 127-28). Specifically, Dr. Wilson found plaintiff was "moderately limited" in his ability to "carry out detailed instructions" and "maintain attention and concentration for extended periods." Tr. 111. Dr. Fulmer found plaintiff was "moderately limited" in his ability to "carry out detailed instructions," "maintain attention and concentration for extended periods," and "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances." Tr. 127. Dr. Fulmer also found plaintiff to be "moderately limited" in his ability to "interact appropriately with the general public" and "accept instructions and respond appropriately to criticism from supervisors." Tr. 128. Consideration of Dr. Norwood's opinions could reasonably be expected to result in more weight being given the opinions Dr. Wilson and Dr. Fulmer.

Having satisfied the second—materiality—requirement for remand under sentence six, plaintiff has satisfied all the requirements for remand under sentence six with respect to the five VA rating decisions and Dr. Norwood's questionnaire. This case should accordingly be remanded for further proceedings pursuant to sentence six.

As addressed, court deems this remand to be pursuant to sentence six because the documents presented to the court were not incorporated into the administrative record. However, had the documents been made part of the record, remand under sentence four of 42 U.S.C. § 405(g) would have been appropriate because, for the same reasons as those stated above, there is a reasonable possibility that the additional evidence could alter the findings made by the ALJ. See Davis v. Barnhart, 392 F. Supp. 2d 747, 751-52 (W.D. Va. 2005) (citing Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)); see also Sederbaum v. Colvin, Civ. Act. No. 1:14-cv-1777-TMC, 2015 WL 3545578, at *17 (D.S.C.) (recommending remand on finding that a different outcome was reasonably possible), rep. & recomm. adopted, 2015 WL 3545578, at *1 (8 June 2015); Owens v. Astrue, No. 5:11-CV-331-D, 2012 WL 3704955, at *5 (E.D.N.C. 25 June 2012) (same), rep. & recomm. adopted, 2012 WL 3704685, at *1 (27 Aug. 2012). --------

Ordinarily, the five VA disability rating decisions and questionnaire by Dr. Norwood, along with the other documents in the Supplemental Records, would be included in the record on remand and considered on the merits in the remand proceedings. In this sense, plaintiff's consent motion to amend the transcript is moot.

On the other hand, the Commissioner, by consenting to the motion to amend, has no objection to incorporating the Supplemental Records into the transcript at this stage of the proceedings. Moreover, incorporation at this time would eliminate it as an issue in the remand proceedings, as it was at the Appeals Council level previously. These considerations warrant allowance of plaintiff's motion to amend the transcript. The motion should accordingly be allowed.

V. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's combined motion (D.E. 19) for judgment on the pleadings and consent motion to amend the transcript be ALLOWED, the Supplemental Records be incorporated into the administrative transcript, the Commissioner's motion (D.E. 20) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence six of 42 U.S.C. § 405(g). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 10 August 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).

Any response to objections shall be filed within 14 days after service of the objections on the responding party.

This 27th day of July 2018.

/s/_________


James E. Gates


United States Magistrate Judge

Finney v. Colvin, 637 F. App'x 711, 718 (4th Cir. 2016) (King, J., dissenting). But see, e.g., Shoop v. Colvin, Civ. No. TMD 13-1707, 2014 WL 2772730, at *11 n.6 (D. Md. 18 June 2014) (noting view that the first requirement in the four-part test from Borders has been superseded by amendment of § 405(g)).